McClung v. United States of America, No. 5:2009cv01548 - Document 7 (S.D.W. Va. 2010)

Court Description: MEMORANDUM OPINION AND ORDER: The Court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge as contained in the 4 Proposed Findings and Recommendation; DIRECTS that the Petitioner's 1 Petition for Writ of H abeas Corpus Pursuant to 28 U.S.C. Section 2241 and Section 9 of Article 1 of the United States Constitution be DISMISSED; the Court further DIRECTS that this matter be REMOVED from the Court's docket; and DENIES a certificate of appealability. Signed by Judge Irene C. Berger on 10/1/2010. (cc: attys; any unrepresented party) (mls)

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McClung v. United States of America Doc. 7 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION GLENN ALLEN McCLUNG Petitioner, v. CIVIL ACTION NO. 5:09-cv-01548 D. BERKEBILE, Respondent. MEMORANDUM OPINION AND ORDER The Court has reviewed Petitioner’s Petition For Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Section 9 of Article 1 of the United States Constitution [Docket 1]. By Standing Order [Docket 2] entered on December 28, 2009, this action was referred to the Honorable R. Clarke VanDervort, United States Magistrate Judge, for submission to this Court of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636. On August 23, 2010, the Magistrate Judge submitted Proposed Findings and Recommendation (“PF&R”) [Docket 4] wherein it is recommended that this Court dismiss the Petitioner’s Petition and remove this matter from the Court’s docket. The Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo review and Petitioner’s right to appeal this Court’s order. See Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F. 2d 91, 94 (4th Cir. 1984). Neither party has timely filed objections to the Dockets.Justia.com Magistrate Judge’s PF&R. Accordingly, the Court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge as contained in the Proposed Findings and Recommendation [Docket 4]. The Court ORDERS that Petitioner’s Petition For Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Section 9 of Article 1 of the United States Constitution [Docket 1] be DISMISSED. The Court further ORDERS that this matter be REMOVED from the Court’s docket. The Court has additionally considered whether to grant a certificate of appealability. See 28 U.S.C. § 2253©. A certificate will not be granted unless there is “a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). The standard is satisfied only upon a showing that reasonable jurists would find that any assessment of the constitutional claims by this Court is debatable or wrong and that any dispositive procedural ruling is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The Court concludes that the governing standard is not satisfied in this instance. Accordingly, the Court DENIES a certificate of appealability. The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. ENTER: October 1, 2010

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